Journal of Air Law and Commerce
Volume 64 | Issue 4 Article 3
1999 The nI ternational Space Station: Legal Framework and Current Status Rochus Moenter
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Recommended Citation Rochus Moenter, The International Space Station: Legal Framework and Current Status, 64 J. Air L. & Com. 1033 (1999) https://scholar.smu.edu/jalc/vol64/iss4/3
This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. THE INTERNATIONAL SPACE STATION: LEGAL FRAMEWORK AND CURRENT STATUS
ROCHUS MOENTER
I. THE INTERNATIONAL SPACE STATION
A. BACKGROUND AND CURRENT STATUS HE DEVELOPMENT and construction of an International Space Station (ISS) began with President Reagan's an- nouncement in 1984 that the United States of America intended to build a permanently inhabited civil space station in the earth's orbit, later labeled "Space Station Freedom."' In con- nection with the announcement, President Reagan invited other countries, in particular Canada, Europe and Japan, to partici- pate in the project. This invitation was subsequently accepted by several countries, including the members of the European Space Agency (ESA).2 Some of the countries accepting were Belgium, the Federal Republic of Germany, France, Italy, the Netherlands, Norway, Spain, the United Kingdom, Canada through the Canadian Space Agency (CSA) and the Govern- ment of Japan (GOJ). Many years of negotiations followed, mainly between NASA (National Aeronautics and Space Administration) and the re- spective national space agencies, regarding the construction, de- velopment and operation of an ISS. It was not until September
1 See Robert Lewis, InternationalSpace Station-Background and Current Status (last modified Dec. 4, 1997)
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29, 1988, that the "Intergovernmental Agreement (IGA) 1988"' was signed between NASA and the CSA, ESA,4 and in March 1989, with the GOJ. The IGA 1988 set forth the general princi- ples for carrying out the ISS mission. 5 In addition to this multi- lateral agreement, several bilateral agreements (Memoranda of Understanding) were executed between NASA and the relevant national space agencies to determine and regulate the technical and administrative details of such cooperation.6 The dramatic change in world politics in the early 1990s, and in particular the decision to include Russia in the Program, led to negotiations with Russia, and ultimately to an invitation for Russia to join the Program was extended.7 Russia had the long- est experience and was most accomplished in the area of human space flights and long term operation of the Russian space sta- tion Mir.' Upon Russia's acceptance, an agreement was soon reached to merge the Russian and American space station programs. In July 1996, NASA and the Russian Space Agency (RSA) reached an ad referendum agreement on a Memorandum of Understanding (MOU), which made Russia a full partner in the sharing of ISS accommodations, resources, responsibilities and costs. This MOU resolved many outstanding technical and man- agerial issues, such as sharing common operation costs, utiliza- tion rights on board the ISS, crew make-up, and provisions relating to logistics and other services. Renegotiations concerning the IGA 1988's terms became nec- essary to reflect these changes, and in December 1996, the inter- national partners reached an ad referendum agreement on the
3 Agreement among the United States of America, governments of Member States of the European Space Agency, the government of Japan, and the govern- ment of Canada on Cooperation in the Detailed Design, Development, Opera- tion, and Utilization of the permanently Manned Civil Space Station, Sept. 29, 1988, 37 ZEITSCHR1Ir FOR LUFT-UND WELTRAUMRECHT (ZLW) 341 [hereinafter IGA 1988]. 4 The ESA then had nine European partners, including Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain and the United Kingdom. 5 See IGA 1988, supra note 3. 6 See generally Andr6 Farand, Space Station Cooperation: Legal Arrangements, in OUTLOOK ON SPACE LAW OVER THE NEXT 30 YEARS 125 (Gabriel Lafferanderie & Daphn6 Crowther eds., 1997) [hereinafter OUTLOOK]; see alsoJfirgen Reifarth, Die Nutzung des Weltraums, in HANDBUCH DES WELTRAUMRECHTS 537, 541-542 (Karl-Heinz B6ckstiegel ed., 1991) [hereinafter HANDBUCH]. 7 See Smith, supra note 1; see also Lewis, supra note 1. 8 See Smith, supra note 1. 1999] INTERNATIONAL SPACE STATION 1035 IGA 1988.1 Having reached agreement on the IGA 1988 and the MOU with the RSA, NASA updated the MOUs with the other partners spelling out specific responsibilities.1" Finally, af- ter almost five years of negotiations, on January 29, 1998, the representatives of the 15 member nations (USA, Russia, Canada, Japan and the eleven member states of the ESA 11) signed the Intergovernmental Agreement (IGA 1998).12 The IGA 1998 replaces the IGA 1988, which had only entered into force for the United States and Japan, and it will soon be ratified by the Government of the Federal Republic of Germany. The ISS represents the largest scientific and technological co- operative program in history. Drawing on the resources and sci- entific expertise of 16 nations," it features "unprecedented technical, managerial, and international complexity."1 4 The de- velopment, integration and operation based on the contribu- tions of each interested partner into a single integrated station, with all of its associated supporting systems, facilities and per- sonnel, is perhaps the most complicated and difficult interna- tional peacetime effort ever undertaken. The entire ISS will be assembled and tested for the first time in orbit, without the ben- efit of ground assembly and checkout.1" The purpose of the program is to place a unique, highly capable laboratory in lower orbit, where high value scientific research can be performed in microgravity. In addition to providing facilities where an inter- national crew of 7 astronaut-scientists can permanently live and work in space, the ISS will provide important laboratory re- search facilities for performing basic research in life science, bi- omedical and material sciences in space, as well as space and
9 See id. 10 See id. 11 Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Swe- den, Switzerland, Spain and the United Kingdom. 12 Agreement among the government of Canada, governments of Member States of the European Space Agency, the government of Japan, the government of the Russian Federation, and the government of the United States of America concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, in Karl-Friedrich Nagel, Das neue Regierun sab kommen iiber die InternationaleRaum Station, 47 ZEIT SCHR Fr FOR LuFr-UND WELTRAUMRECHT (ZLW) 143, 149-63 (1998) [hereinafter IGA 1998]. 13 United States (NASA), Canada (CSA), the ESA members (Belgium, Den- mark (DSRI), France (CNES), Germany (DLR), Italy (ASI), Netherlands, Nor- way, Spain (INTA), Sweden (SSC), Switzerland, United Kingdom), Japan (NASDA), Russia (PKA) and Brazil (INPE). 14 See Lewis, supra note 1. 15 See id. 1036 JOURNAL OFAIR LAW AND COMMERCE engineering technology development which cannot be accom- plished on Earth.1 6 The ISS will be comprised of various inter- locking components and modules" which are currently being constructed on Earth. 8 Once it is assembled in orbit the ISS will measure 108.6 m x 79.9 m with an overall weight of 457 tons.19 The actual construction plans involve different levels of participation among the member states. The final assembly will be finished by the end of the year 2004. The construction cost is estimated to be between US $60 and US $100 billion, and the cost for maintenance will be approximately US $50 billion. The ISS will be operated for a period of 10 years. Construction of the ISS will involve a three-phase cooperative effort.20 The first phase will involve the US space shuttle and the existing Russian space station, Mir.21 The second phase in- volves building a bilateral U.S.-Russian space station that can be permanently occupied by three astronauts.2 The third phase expands phase two of the Space Station into a multina- tional facility by adding European, Japanese and Canadian com- ponents as well as Russian research modules.23 The ESA formally committed to its current contribution in the ISS at the ESA Ministerial Meeting in Toulouse, France in October 1995.24 The approved contributions include: (i) The COLUMBUS Orbital Facility (COF, formerly the APM, a laboratory module, called the Attached Pressurized Mod-
16 Each partner is designing, developing and will be operating separate pieces of hardware, to be integrated on-orbit into a single orbital station. Mission con- trol centers, launch vehicles, astronauts/cosmonauts, and support services will be provided by multiple partners, but will function in a coordinated, integrated fash- ion. See Lawrence S. DeLucas, InternationalSpace Law, 38 ACrA ASTRONAUTICA 613 (1996). 17 See id. 18 See id.; see alsoJacobs, supra note 1, at 623-630; see alsoJfirgen Reifarth, Rech- tliche Aspekte, des Ubereinkommens iiber die InternationaleRaumstation, 38 ZEITSCHRIFT FOR LuFr-UND WELTRAUMRECHT 35, at 36-37 (1989). 19 See DeLucas, supra note 16, at 615. 20 See Smith, supra note 1. 21 See id. 22 See id. 23 See id.; see alsoJacobs, supra note 18, at 621-630; see also DeLucas, supra note 16, at 613-619; see also Pat Riep-Dice, InternationalSpace Station, Creating a world- class orbiting laboratory (last modified Feb. 8, 1999)
B. THE LEGAL FRAMEWORK: AN OVERVIEW ON CuRRENT LEGISLATION
The fundamental principles and relevant rulings on interna- tional space activities can be found in six treaties that comprise the so called "Law of Outer Space." These treaties include the 1967 Outer Space Treaty,26 the 1972 Liability Convention,2 7 the
25 See Lewis, supra note 1. 26 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signatureJan. 27, 1967, 610 U.N.T.S. 206 [hereinafter OST 1967]. 27 Convention on the International Liability for Damage Caused by Space Ob- jects opened for signature Mar. 29, 1972, 961 U.N.T.S. 187 [hereinafter Liability Convention]. 1038 JOURNAL OF AIR LAW AND COMMERCE 1975 Registration Convention, 28 the 1968 Rescue Agreement, 29 the 1984 Moon Treaty" and the Intergovernmental Agreement 1998.31 Article I paragraph 2 of the 1967 Outer Space Treaty provides for the exploration and use of Outer Space in accordance with public international law.3 2 Likewise, Article 2 paragraph 1 of the IGA 1998, subjects the ISS to international law. 3 Thus, the development, construction and operation of the ISS must be seen and interpreted in the light of the aforementioned interna- tional agreements, treaties and conventions-the current law of Outer Space. 4 The IGA 1998, which replaces the IGA 1988, will be discussed in further detail later. First, some background information will be given on the aforementioned agreements and conventions. This is not intended to provide a complete overview or detailed analysis, but rather an introduction to the basic legal framework governing space station activities. This paper will then primarily focus on the IGA 1998 in comparison to the IGA 1988, and some selected legal aspects.
1. The Outer Space Treaty of January 27, 1967 ("OST 1967")3' The OST 1967 is binding on all member states as public inter- national law.36 Article I paragraph 2 establishes the principles of "equality of States" as the first important principle of the treaty and emphasizes that all States shall have "equally free access to
28 Convention on the Registration of Objects Launched into Outer Space opened for signatureJan. 14, 1975, U.N.T.S. 16 (entered into force Sept. 15, 1976) [hereinafter Registration Convention]. 29 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signatureApr. 22, 1968, 672 U.N.T.S. 119. 30 Agreement Governing the Activities of States on the Moon and other Celes- tial Bodies, opened for signatureDec. 18, 1979, 18 I.L.M. 1434. 31 IGA 1998, supra note 12. 32 See OST 1967, supra note 26, at 208. 33 See IGA 1998, supra note 12 at 344. 34 See Reifarth, supra note 18, at 45; see also Reifarth, supra note 6, at 546; see also Galloway, supra note 2, at 38. 35 OST 1967, supra note 26. 36 See M. Wollenschliger & H. Hablitzel, Der Weltraumvertrag vom 27. January 1967, in FESTSCHRIFT FOR G. KQCHENHOFF 869, 872-873 (1972); see also Karl-Heinz B6ckstiegel, Legal Aspects of Space Stations, in PROCEEDINGS OF TWENTY-SEVENTH COLLOQUIUM ON THE LAW OF OUTER SPACE 225 (American Institute of Aeronau- tics and Astronautics, Lausanne, Switzerland, Oct. 7-13, 1984); see also Bin Cheng, The 1967 Outer Space Treaty: Thirtieth Anniversary, 23 AIR & SPACE LAW 156 (1998). 1999] INTERNATIONAL SPACE STATION 1039 the Outer Space including the Moon and other celestial bodies without discrimination for the purpose of scientific investigation and use in accordance with International Law."37 In other words, Article 1 of the OST 1967 guarantees freedom of scientific investigation, exploration, and use of space, includ- ing the moon and other celestial bodies. These activities are to be conducted in accordance with international law. Thus, Arti- cle I prohibits any discrimination of a particular State, i.e. each State is free to perform scientific research in Outer Space and to 3 8 subsequently abandon it. "Outer Space" is considered to be res communis-a place that is owned by no one but is free for use by everyone.3 9 Article II of the OST 1967 treaty provides that "outer space, including the Moon and other celestial bodies, is not subject to national ap- propriation by claim of sovereignty, by means of use or occupa- tion, or by any other means. "40' This "free space" concept precludes any State from claiming a portion of Outer Space as a part of its national territory or under its jurisdiction.4 1 Although space may not be appropri- ated, all States may freely explore and use it.4 2 In some circum- stances this "use" may be exclusive, provided such exclusive use does not constitute a permanent "appropriation" nor an at- tempt to extend state sovereignty.43 Article IV of the Treaty provides for "peaceful use" of Outer Space.44 Initially, the USA and the former USSR disagreed as to
37 OST 1967, supra note 26, at 206-07. 8 See Wollenschldger & Hablitzel, supra note 36, at 874; see also Karl-Heinz B6ckstiegel, HANDBJUCH, supra note 6, at 268-69. 39 Regarding the question "where begins outer space" see Bin Cheng, Interna- tional Responsibility and Liability for Launch Activities, 20 AIR & SPACE LAw 297, 298- 99 (1995). Cheng's conclusion is that there exists a rule of general international law recognizing the lowest perigee of any existing or past artificial earth satellites as marking the beginning of outer space. See id. According to Cheng this point may be put at approximately 100-110 KM. See also Henri A. Wassenbergh, A Launch and A Space TransportationLaw, Separatefrom Outer Space Law?, 21 AIR & SPACE LAw 28 (1996). 40 OST 1967, supra note 26, at 208. 41 See Karl-Heinz B6ckstiegel, HANDBUCH, supra note 6, at 270-71. 9 42 See OCFIcE OF TECHNOLOGY ASSESSMENT, CONG. BOARD, 9TH CONGRESS, SPACE STATIONS AND THE LAW: SELECTED LEGAL ISSUES 18 (Background Paper, 1986) [hereinafter SPACE STATIONS AND THE LAw]. 43 See Henri A. Wassenbergh, The Law of Commercial Space Activities, in OUTLOOK ON SPACE LAW OVER THE NEXT 30 YEARS 173, 174 (Gabriel Lafferanderie & Daphne Crowther eds., 1997); see also SPACE STATIONS AND THE LAw, supra note 42, at 19. 44 See Cheng, supra note 36. 1040 JOURNAL OF AIR LAW AND COMMERCE the interpretation of the word "peaceful." While the USA un- derstood peaceful to mean "non aggressive", the former USSR interpreted peaceful as "non military," which would exclude mil- itary personnel from outer space activities. Article IV paragraph 2 now expressly allows the use of military personnel for peaceful space activities. Article VI establishes the so called "principle of international state responsibility" and provides: States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and con- tinuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organiza- tion, responsibility for compliance with this Treaty shall be borne both, by the international organization and by the States Parties to the Treaty participating in such organization.45 Under the first sentence of Article VI, the member states as- sumed direct international responsibility for national space ac- tivities, including space activities of non-governmental entities, which in law would not otherwise be imputable to them.46 Such non-governmental activities are to be treated as activities of the respective States themselves. 47 The activities (including launch- ing) must qualify as being "national." That is, they must be ac- tivities carried out by the State itself, its nationals, or anyone acting within the State's jurisdiction,48 including those by, or on
45 See OST 1967, supra note 26, at 209. 46 See id. 47 See Karl-Heinz B6ckstiegel, HANDBUCH, supra note 6, at 273-75; see also Cheng, supra note 39, at 302; see also Wassenbergh, supra note 39, at 30. Was- senbergh wants the liability to rest upon the non-governmental entity deploying space activities or launching activities. See id. "The absolute and unlimited liabil- ity of the launching State should be replaced by a new international launching law, as part of a new space transportation law, applicable to private launchings." Id.; see also Henri A. Wassenbergh, InternationalSpace Law: A Turn of the Tide, 22 AIR & SPACE LAw 334, 335 (1997). 48 Including territorial, quasi-territorial and personal jurisdiction. See also Was- senbergh, supra note 39, at 30. 1999] INTERNATIONAL SPACE STATION 1041 board ships and aircraft of a State's national as well as activities by, or by personnel of, space objects under a State's registry.49 Pursuant to the second sentence of Article VI, all non-govern- mental activities must be authorized and continuously super- vised by the "appropriate State Party. '50 It can be safely argued that there can be many State Parties involved 51 in a given space activity and it will then be up to the States involved to designate one State to exercise authority and supervision or even to en- trust the control to the State of registry.52 In any event the States involved will need to ensure that both the State of registry and the State of authority and control will discharge their re- spective duties. With respect to government or private activities that could "cause potentially harmful interference with activities of other States, "the State, under Article IX of the treaty must "undertake appropriate international consultation before proceeding with 53 any such activities or experiment. Articles VI and VII of the Treaty and Article II of the Liability Convention extend the concept of State "responsibility" to in- clude the concept of "liability" for certain space activities. Nota- bly, Article II of the Liability Convention provides for an "absolute liability" of the "launching State" for "damage caused by its space objects on the surface of the Earth or to aircraft in flight." The term "Space Object" designates any object that humans launch, attempt to launch or have launched into Outer Space, 54 together with component parts of the object.
49 See Cheng, supra note 39, at 303; see also Cheng, supra note 36, at 161. 50 Regarding the controversy as to the identity of the appropriate State Party, see Cheng, supra note 39, at 304. See also Cheng, supra note 36, at 160; Was- senbergh, supra note 39, at 28, 30. 51 This is also supported by sentence 3 of article VI regarding international organizations, which makes clear that there can be a number of states involved. 52 See OST 1967, supra note 26, art. VIII, at 209; see also Registration Conven- tion, supra note 28. 53 See OST 1967, supra note 26, at 210. 54 See Registration Convention, supra note 28, art. Ib; see also Liability Conven- tion, supra note 27, art. Ib; M. Hintz, Weltraumgeg enstdnde, in HANDBUCH, supra note 6, at 160-63; see generally Cheng, supra note 39, at 298. "A space object is any object, and its component parts, including its launcher/booster/shuttle, etc., brought by human effort into outer space, and when such object is on its way to/ from outer space (the launching period)," excluding "attempted launching" from the definition when it does not reach outer space. Wassenbergh, supra note 39, at 29; see also Galloway, supra note 2, at 40. 1042 JOURNAL OF AIR LAW AND COMMERCE In accordance with Article VII, four States may be jointly and severally liable 55 for damages caused by a space object, specifi- cally, (i) the State that launches the space object, (ii) the State that procures the launching, (iii) the State from whose territory the object is launched and (iv) the State from whose facility the object is launched.56 Pursuant to Article VIII, although a State cannot use a Space Station to make claims of sovereignty, the State on whose regis- try an object launched is carried, shall retain the jurisdiction and control over such object and over any personnel thereof while in Outer Space or on a celestial body. Finally, Article XIII defines the scope of the treaty as being applicable to "all activities of the member states during the ex- ploration and use of outer space, including the moon and other celestial bodies. ' 57 In relation to the general international law (leges generales), the provisions of the Outer Space Treaty are considered leges speciales
2. The Liability Convention of 197259 As mentioned, Article II of the Liability Convention 1972 ex- tends the concept of State "responsibility" to the concept of State "liability." Moreover, it imposes "absolute liability"6°on a launching State for damages caused by its space objects on the surface of the Earth or in the air, except to the extent to which such damage has been caused by the gross negligence on the part of the victim or the claimant State.6 Pursuant to Article III, liability for damage done elsewhere rests on fault.62 For this purpose Article I defines "damages" as "loss of life, personal in- jury or other impairment of health, or loss of or damage to 63 property. The Liability Convention 1972 applies only to "launching States" as defined as "(i) a State which launches or procures the
55 See Cheng, supra note 39, at 306, 310. 56 If more than one State is involved, it is presumed that their liability will be joint and several ("internationally liable"), the OST 1967, however, is not explicit. Likewise, it is unclear whether this liability is absolute or based on fault. 57 OST 1967, supra note 26, at 211. 58 See Wollenschliger & H. Hablitzel, supra note 36, at 874. 59 Liability Convention, supra note 27. 60 See Peter Malanczuk, Haftung, in HANDBUCH, supra note 6, at 764, 782. 61 See Liability Convention, supra note 27, at art. VI, para. 1. 62 See id. at 190. 63 Id. at 189. 1999] INTERNATIONAL SPACE STATION 1043 launching of a space object, or (ii) a State from whose territory or facility a space object is launched.16 4 For this purpose, "launching" includes attempted launching.65 If two or more States jointly launch a space object, they are jointly and severally liable for any damage.66 These provisions also apply to any "in- ternational intergovernmental organization." The States in- volved must determine which one shall register the object launched.67 The Liability Convention 1972 grants neither rights nor re- sponsibilities to the private sector. If nationals of a launching State cause damage to the nationals of another State, the dam- aged party may have its government present a claim for compen- sation to the government of the launching party.68 The Liability Convention 1972 does, however, acknowledge the right of indi- viduals to pursue remedies outside the Convention.69 Articles X through XIX provide for a system of compulsory third-party settlement of disputes, although, unless otherwise agreed, the final award is not binding upon the parties.7 °
3. The Registration Convention of 197571 It was in the early 1960s when, due to the steadily increasing number of space objects launched into Outer Space, the need for a public registry prompted the UN General Assembly to adopt resolution 1721 (XVI). This resolution requests launch- ing States to furnish relevant information regarding objects launched into Outer Space. In 1974, after several years of satis- factory practice in registering launched space objects, the Gen-
64 See id. at 189. 65 Id. - See Bin Cheng, Space Objects and their Various Connecting Factors, in OUTLOOK ON SPACE LAW OVER THE NEXT 30 YEARS 203, 212-14; see also Galloway, supra note 2, at 39; Cheng, supra note 39 at 307; see also HANDBUCH, supra note 6 at 783. 67 See Liability Convention, supra note 27, at 192; see also Registration Conven- tion, supra note 28, at 17; see also Wassenbergh, supra note 39, at 30; Galloway, supra note 2, at 39. See Liability Convention, supra note 27, at 191; see also SPACE STATIONS AND THE LAw, supra note 42, at 22. 69 Article XI (para. 2) of the Liability Convention 1972 states: "Nothing in this Convention shall prevent a State, or natural or juridical persons it might repre- sent, from pursuing a claim in the courts or administrative tribunals or agencies of a launching State." See Liability Convention, supra note 27, at 192. Thus, the private entity remains liable to third parties under general national law, e.g. con- tract law, tort law etc. 70 See id. at 191-93. 71 See Registration Convention, supra note 28. 1044 JOURNAL OF AIR LAW AND COMMERCE eral Assembly adopted the Registration Convention and opened it for signature. It finally entered into force on September 15, 1976.72 As pointed out, Article VIII of the OST 1967 says that a State on "whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object and over any personnel thereof, while in outer space or on a celestial body." This principle has also been adopted in the Registration 7 Convention 1975. 1 Thus, the primary importance of the Regis- tration Convention 1975 lies in the fact that a State or organiza- tion acknowledges its responsibilities by registering the object.74 Although it is desirable to have a complete registry of all objects launched into outer space, States are still reluctant to register. Often States delay registering or do not register completely. 75 The registration under the Convention gives answers as to what objects are in outer space but does not give information on where those objects can be found. Article II paragraph 2 of the Registration Convention 1975 provides that when there are two or more launching States, they shall jointly determine which shall register the object.76 Finally, it can be safely argued that the 1975 Registration Convention needs greater recognition by the launching States in order to guarantee a safe and better controlled outer space.
4. The IntergovernmentalAgreement of September 28, 198877 a. Object Pursuant to Article I paragraph 1 of the IGA 1988, the object of the agreement is "to establish a long-term international coop- erative framework among the Partners, on the basis of a genuine
72 See id. 73 Id. at 209. 74 See Reifarth, HANDBUCH, supra note 6, at 275-76. 75 See Perek, The 1976 Registration Convention, 3 ZEITSCHRIFr FOR LUFr-UND WEL- TRAUMRECHT (ZLW) 353 (1998); see also Cheng, supra note 66, at 205. 76 For the problem of 'jurisdiction and control" as a result of Article II of the Registration Convention 1976, see Christian Patermann, Registration,jurisdiction, control and ownership of elements of the Space Station, Venezia, Apr. 22-24, 1986, Euro- pean Conference "Cooperation in the International Space Station System." See also Cheng, supra note 66, at 214-15. Cheng thinks that the initial principle of 'jurisdiction and control should go with registration" has "completely been sub- verted, by allowing States engaged in joint launching to make more or less what arrangement they want, separating, if they wish, registration from jurisdiction and control." 77 See IGA 1988, supra note 3. 1999] INTERNATIONAL SPACE STATION 1045 partnership, for the detailed design, development, operation, and utilization of a permanently manned civil Space Station for peaceful purposes in accordance with international law." b. Genuine Partnership-Peaceful Use During the negotiations of the IGA 1998, the European mem- ber states emphasized the importance of a "genuine partner- ship" between Europe and the U.S. involving adequate participation of the European Partners in the direction and or- ganization of the Program, access to the Station and technology- transfer, provisions regarding dispute resolution and European responsibility for the elements provided by the European mem- ber states. 8 Furthermore, the civil character and peaceful use of the Station was of primary importance.79 c. International Law According to Article II paragraph 1, Space Station activities are subject to "international law, including the Outer Space Treaty, the Rescue Agreement, the Liability Convention and the Registration Convention." 80 d. No Appropriation In order to clarify, Article II paragraph 2 (c) returns to the contents of Article II of the Outer Space Treaty 1967, which in- cludes the prohibition of national appropriation over Outer Space or any portion of Outer Space ("freedom of Space").81 e. Registration, Jurisdiction and Control Article V paragraph 1 refers to the fundamental idea-already set forth in Article VIII of the Outer Space Treaty 1967 and Arti- cle II of the Registration Convention-of proper responsibility and independence of each respective Partner for the elements launched. It also provides for registration of the same.82 Article V paragraph 2 expressly states that each Partner, in accordance with Article VIII of the Outer Space Treaty and Article II of the Registration Convention, shall retain jurisdiction and control over the elements it registers in accordance with paragraph 1
78 See Reifarth, supra note 18, at 38. 79 See id. 80 IGA 1988, supra note 3, at art. II, para. 1. 81 See id. at art. II, para. 2(c). 82 See id. at art. V, para. 1. 1046 JOURNAL OF AIR LAW AND COMMERCE and over personnel in or on the Space Station who are its na- tionals.83 According to Article V paragraph 2, the "exercise of such jurisdiction and control shall be subject to any relevant provisions of the IGA 1988, the MOUs, and implementing agreements, including relevant procedural mechanisms estab- lished therein. '84 Article V is structured to provide a legal basis, and clearly determines the legal jurisdiction and responsibility of each participant in the Program. It should be mentioned that Article V follows the principle of 'jurisdiction and control" already established in Article VIII of the OST 1967 and thereby guarantees that, although an actual superiority may exist, no conclusion can be drawn as to the legal relation.s5 f. Management Article VII provides for a complex management structure, whereby each member state shall be responsible for the manage- ment and direction of its own programs. 86 The United States, acting through NASA, shall have overall responsibility for the coordination and direction of the Space Station, system engi- neering, integration and safety, unless otherwise provided in the MOUs and implementing agreements. Furthermore, manage- ment bodies shall be established "which shall plan and coordi- nate activities affecting the design and development of the Space Station and its safe, efficient and effective operation and utilization . . . . decision-making by consensus shall be the goal. "87
g. Utilization Article IX regulates the allocation of different user elements and utilization resources between, as well as the duties and
83 See id. at art. V, para. 2. According to Article XXII this also applies in respect to criminal jurisdiction. The U.S., in addition, may exercise criminal jurisdiction over criminal acts committed by a "non-U.S. national which endangers the safety of the manned base or crew members," provided that before the prosecution consultations have taken place and an agreement has been reached between the U.S. and the Partner State whose national is being charged. See id. at art. XXII, para. 2. 84 See id. at art. V, para. 2. 85 See HORST BITTLINGER, HOHEITSGEWALT UND KONTROLLE IM WELTRAUM 60-66 (1988); see also Reifarth, supra note 18, at 46; see also Reifarth, HANDBUCH, supra note 6 at 548. 86 See Reifarth, HANDBUCH, supra note 6, at 541-43. 87 Program Coordination Committee (PCC), Space Station Control Board (SSCB). 1999] INTERNATIONAL SPACE STATION 1047 rights of, the partners. Specifically, Article IX paragraph 8 es- tablishes the right of each partner to use and select users for its allocation for any purpose consistent with the object of the ISS, MOUs and implementing agreements. In order to protect the other partners, Article IX paragraph 8(a) requires the prior notification and consent of all partners of proposed use by a non-partner of private entity. 8 Pursuant to Article IX paragraph 8 (b), a Partner providing an element shall determine whether a contemplated use (by it or a Non-Partner) is for a "peaceful purpose." If it concludes that the use is not for a peaceful purpose, it may prohibit such use.89 h. Cross-Waiver of Liability The objective of Article XVI of the IGA 1988 is to encourage cooperation and participation in the exploration, exploitation, and use of the Outer Space and therefore to establish a broad cross-waiver of liability by the Partner States and related entities involved. Through Article XVI the Partner States established an exclusion of liability for all participating entities in Space Sta- tion activities, including the Partners of the IGA 1988, the Space Agencies and related entities and industry. The scope of Article XVI covers all "Protected Space Operations," which include all activities or actions related to the Space Station cooperation, un- less caused by wilfull misconduct, and claims made by natural persons for injury or death, claims between a Partner State and its own related entity or entities and intellectual property claims. In accordance with Article XVI paragraph 3(a), each Partner State waives all claims based on damages arising out of "Pro- tected Space Operations" against any of the participating enti- ties or persons defined in Article XVI paragraph 2 (a) through (f). To prevent uncertainty, Article XVI paragraph 3 (c) clari- fies that the cross-waiver of liability also applies to the Liability Convention, provided the damage is directly related to "Pro- tected Space Operations." With respect to a claim by "third par- ties" arising under the Liability Convention, Article XVII paragraph 2 provides that the Partners shall immediately start
88 In this respect paragraph XI clarifies that "an ESA member state that was an ESA member state at the time of the signature of the IGA 1988" by the United States, which occurred on September 29, 1998, shall not be considered a Non- Partner. See IGA 1988, supra note 3, at art. VII, para. 5. 89 See Reifarth, supra note 18, at 42. 1048 JOURNAL OF AIR LAW AND COMMERCE consultations on any potential liability, apportionment and de- fense of such claim. Articles XIX and XX regulate the exchange and treatment of data and goods. They also establish the obligation of each Part- ner to encourage and facilitate the transfer and to provide all Partners with necessary technical data and goods in connection with the Space Station cooperation, unless the transfer would be in contravention of national laws and regulations. Article XXI deals with intellectual property issues which will be discussed separately; 90 Article XXII deals with criminal jurisdiction.
5. The Intergovernmental Agreement of January 29, 199891 a. General As a consequence of the major political motivation which led, inter alia, to the renegotiation of the IGA 1988 and the invitation to Russia to participate in the Program, the general character of the IGA 1988 has changed, while legal matters remain basically unchanged.9 2 The IGA 1988 had created a framework for par- ticipation in the U.S. space station. The concept of the new agreement is that of a truly international joint project in which partners contribute to the program on an equal basis, with the U.S. having special responsibility for the overall coordination.9" A brief summary follows on the major changes to the IGA 1988. b. Changes and modifications 1. Object and Scope Article I paragraph 2 of the IGA 1988 intended a "U.S. core Space Station" with elements produced by the other Partners around such a core Station in order to create an "international Space Station complex with greater capabilities." The IGA 1998 creates "an integrated International Space Station." The foun- dation elements for the ISS are now produced by the U.S. and Russia, as well as by other Partners. The United States is entitled
90 See infra Section 6(b). 91 See IGA 1998, supra note 12, at 149-65. 92 For example, Article II (International Rights and Obligations); Article X (Operation); Article XI (Crew); Article XVII (Liability Convention); Article XXI (Intellectual Property); Articles XIX and XX (Exchange of Data and Goods; Treatment of Data and Goods in Transit), Articles V and VI (Registration; Juris- diction and Control; Ownership of Elements and Equipment). 93 See Nagel, supra note 12, at 145, 149. 1999] INTERNATIONAL SPACE STATION 1049 to exercise a leading role in terms of management and coordination.
2. Management Accordingly, Article VII paragraph 1 establishes the principle that the management of the ISS will take place on a multilateral basis. The Partners, acting through their respective national space agencies, will participate in and discharge responsibilities of the management bodies. Pursuant to Article VII paragraph 2, NASA will be responsible for the overall Program management and coordination, the overall system engineering, safety require- ments and plans, and the planning for and the coordination of the execution of the overall integrated operation of the ISS.94
3. Utilization As a general rule Article IX states that utilization rights are derived from Partner provision of user elements. In addition, Partners that provide infrastructure elements may acquire utili- zation rights for elements that belong to other Partners. In or- der to protect the Partners, Article IX paragraph 3 (a) requires prior "notification and timely consensus" among all Partners re- garding the use of certain elements by non-partners. For this purpose, ESA Member States shall not be considered non-part- ners. Compared to the IGA 1988, future ESA Member States may therefore be directly involved in the ISS.
4. Transport While the IGA 1988 provided for NASA's Space Transporta- tion System95 as the baseline launch and return transportation system, Article XII of the IGA 1998 has been modified. With the exception of Canada, each Partner may now use its own (gov- ernment or private) transportation system.96
5. Cross-Waiver of Liability Russia's cooperation with Kazakhstan and, in particular, its use of the launching facilities in Baikonur, necessitated a modi- fied definition of the term "related entities" in order to extend
94 See IGA 1998, supra note 12, at art. VII, para. 2. 95 U.S. Space Shuttle. 96 See IGA 1998, supra note 12, at art. XII, para. 1. The pertinent systems in- clude: ESA: ARIANE 5; USA: Space Shuttle; Russia: Proton and Soyuz; Japan: H- II. 1050 JOURNAL OFAIR LAW AND COMMERCE the applicability of cross-waiver of liability to such cooperating countries.97 The IGA 1998 reflects this necessity by adding a subparagraph to Article XVI paragraph 2(b) providing that "re- lated entities" shall also comprise States or agencies or institu- tions of a State having the "same relationship" to a Partner State as described in Article 11(b) (1) through (3) or otherwise en- gaged in the implementation of "Protected Space Operations" as defined in Article XVI paragraph 2(f). The demand of the United States led to a further modifica- tion in Article XVI paragraph 3(d) which defines the particular cases in which the cross-waiver shall not be applicable. Pursuant to Article XVI paragraph 3(d), the cross-waiver of liability is not applicable to "claims made by a natural person, the estate, survi- vors or subrogees for bodily injury, other impairment of health.., or death" unless the claim has been subrogated to the Partner State.98 The general cross-waiver of liability shall apply in these cases.
6. CriminalJurisdiction Article XXII has been the subject of intense political discus- sion.99 Pursuant to Article XXII paragraph 2, in addition to the execution of criminal jurisdiction over its respective nationals, affected Partner States °° may now exercise criminal jurisdiction over nationals of a Partner State whose misconduct in orbit "(a) affects the life or safety of a national of another Partner State or (b) occurs in or on or causes damage to the flight element of another Partner State," provided that consultations concerning the prosecutorial interest of the affected Partner State have taken place and the latter, within 90 days, does "concur" or "fails to provide assurances that it will submit the case to its compe- tent authorities for prosecution." 101
7. Entry into force - Operative effect
According to Article XXV paragraph 3(c), any prospective ESA Member State may accede to the IGA 1998 by simply "de- positing its instruments of accession with the Depositary," with-
97 See Nagel, supra note 12, at 143. 98 See IGA 1998, supra note 12, at art. XVI, para. 2(a). - See Nagel, supra note 12, at 147. 100 See IGA 1988, supra note 3, at art. XXII, para. 2. 101IGA 1998, supra note 12, at art. XXII, para. 2. 1999] INTERNATIONAL SPACE STATION 1051 out approval of the other Partner States.10 2 Finally, Article XXVI determines that the IGA 1998 shall become "operative" as between the U.S. and Russia on the day they deposit their rele- vant instruments of ratification, acceptance, or approval. 10 3 In order to continue the cooperation on the ISS until actual entry into force' 04 of the IGA 1998, an agreement has also been signed between the Partners, determining that the IGA may be applied before entry into force, provided the application is not contrary to the relevant national laws and regulations. 10 5
6. Selected Legal Aspects a. Private Launching and State Liability In light of the steadily growing number of space activities and especially due to the shift from State to private involvement in space station programs, there is a question as to whether the current system of direct State liability for private space activities, established in Articles VI and VII of the OST 1967 and Article II of the Liability Convention, is still appropriate. The need to privatize, commercialize, and promote Outer Space activities by non-governmental entities along with the introduction of new international legal instruments has been addressed. 0 6 To satisfy this request, the drafting of internationally agreeable and stan- dardized requirements for non-governmental entities that in- tend to become active in Outer Space will be necessary. National legislation should therefore be enacted in that re- spect.10 7 The necessity for non-governmental entities that com- mercially participate in and benefit from space activities to
102 See id. at art. XXV, para. 3(c). 103 It is so far unclear how to differentiate between "enter into force" and "be- come operative." See Nagel, supra note 12, at 147. 104 See Article XXV paragraph 3 (a): "This Agreement shall enter into force on the date on which the last instrument of ratification, acceptance, or approval of Japan, Russia and the United States has been deposited .... (b) It shall enter into force for the European Partner after ratification of at least four signatory or acceding States and respective notifications." IGA 1998, supra note 12, at art. XXV, para. 3(a). 105 See Karl-Heinz B6ckstiegel, SPACE STATIONS, supra note 2 at 109. 106 See, e.g., Wassenbergh, supra note 39; see also KARL-HEINZ BOCKSTIEGEL, COM- MERCIAL USE OF SPACE STATIONS - THE LEGAL FRAMEWORK OF TRANSATLANTIC Co- OPERATION 217-22 (1986). 107 See generally Karl-Heinz B6ckstiegel, HANDBUCH, supra note 6, at 293-97, 305- 06, 296. The State may have a recourse, i.e. a claim for compensation against the private entity that undertakes the launching under national law (existing or to be enacted). In case of absolute liability, especially in Germany and in other Euro- pean countries, for example under the provisions that transform the EU princi- 1052 JOURNAL OF AIR LAW AND COMMERCE accept and respond to their own international liabilityl' is mandatory in order to unburden the "launching State"'0 9 and cannot be seen apart from, but only in the context of and di- rectly related to the business opportunities that this new market represents to the private sector. How to split such responsibility and which aspects should remain with the relevant State in terms of supervision may be debatable, but at least the economic responsibility and potential liability for damages to third parties resulting from private launch activities should be imposed on the private entity. 110 b. Protection of Inventions - Intellectual Property in the Outer Space
As a result of increasing international industrial space cooper- ation and the future commercialization of prospective technical inventions in Outer Space, and specifically in view of the planned International Space Station, the protection of technical innovations (by means of patents, copyrights, trademarks, etc.) and proprietary rights in space activities, including issues re- garding technology transfer, is essential. A short introduction shall be given on existing patent law regarding the protection of inventions made in Outer Space."' Article XXI of the IGA 1998 provides for the protection of intellectual property in Outer Space. For this purpose, Article XXI paragraph 2 determines that "an activity occurring in or on a Space Station flight shall be deemed to have occured only in the territory of the Partner State of that element's registry." Thus, the inventions shall be deemed to have occured within the jurisdiction of the Partner State which registered the rele- vant element. In regard to elements registered by the ESA, each pies of product liability, i.e. the EU- Resolution regarding products liability, into national law. See id. 108 Contractual, tort, and products liability. 109See Wassenbergh, supra note 39, at 28. 110 See Wassenbergh, supra note 43, at 179-82; see also Wassenbergh, supra note 47, at 334. 1M With respect to the question whether the range of effectiveness of national (German) patent laws extends to Satellite Operations in Outer Space, see Karl- Heinz B6ckstiegel, Paul Krdmer, & Isabel Polley, Patent Protectionfor the Operation of Telecommunication Satellite Systems in Outer SpaceP, (pts. I & II), 47 ZEITSCHRIFr FUR LUFr-UND WELTRAUMRECHT (ZLW) 3 (1998), ZEITSCHRIFr FOR LUFT-UND WEL- TRAUMRECHT (ZLW) 166 (1998). 1999] INTERNATIONAL SPACE STATION 1053 European Partner State "may deem the activity to have occured ' within its territory. 12 Article XXI paragraph 2 returns to the principle of "registry" and 'jurisdiction"' 13 as the link and connecting point, already established in Article VIII of the OST 1967 and Article II of the Registration Convention. 4 Each Partner thereby extends the applicability of its national Patent Law to the relevant element in Outer Space provided by it."15 Article XXI thereby guarantees the protection of inventions through the granting of a patent tide to the relevant country of registration, but at the same time limits these rights, including enforceability, to the territory of the relevant country that issued the respective grant for the pat- ent. This may lead to a lack of protection of the relevant patent if the latter is used on user elements that are registered under a different jurisdiction. Article XXI paragraph 2 ensures that this concept will apply notwithstanding any participation of a Partner State, its cooper- ating agency, or related entities in an activity occuring in or on any element belonging to another Partner. In other words, the mere participation of one Partner aboard another Partner's flight element does not affect the jurisdiction of such Partner regarding the principal activity and potential inventions. Article XXI paragraph 3 limits the broad range of applicabil- ity of U.S. Patent Law to inventions made by non-nationals in U.S. territory.' 1 6 Pursuant to paragraph 3, a Partner State shall
112 The territory is the one of the signatory states of the IGA; The Federal Re- public of Germany has ratified the IGA 1988 in such a way that the activities which are carried out on board of the European Module will be considered, for the purpose of its national legislation, as occurring in German territory, see Arti- cle 2 of the law of July 13, 1991 ratifying the IGA 1988. See also A. M. Balsano, Space Technology and Intellectual Property, 20 AIR & SPACE LAw 177(1995). '1i For the country of citizenship of the astronaut that creates the inventions and an "international Space Patent," see Charles B. Meyer, Protecting Inventors' Rights Aboard an International Space Station, 70 J. PAT. & TRADEMARK OFF. SOC'Y 332, 347-50 (1988); see also Knut Focke, Manned Space Stations-Legal Issues, 39 ZEITSCHRIFT FOR LuFr-UND WELTRAUMRECHT (ZLW) 93 (1990). 114 See Friedrich-Karl Beier & Dieter Stauder, Weltraumstationen und das Recht des geistigen Eigentums, GRUR INT. 7-9 (1985). 115 This is not in contravention of the territoriality principle, since a manned space object falls within the sovereignty of a State, analogous to the principle of extension of sovereignty and jurisdiction to ships and aircraft. See id. at 9; see also HANDBUCH, supra note 6, at 299-301. 116 According to U.S. Patent Law, foreigners that make an invention in the United States must first register the invention in the United States. See Reifarth, supra note 18, at 49. 1054 JOURNAL OFAIR LAW AND COMMERCE not apply its national laws concerning secrecy of inventions if this prevents the filing of a patent application in another Part- ner State that provides for the protection of the secrecy of pat- ent applications containing secret information (reciprocity). Article XXI paragraph 4 considers the special situation of the ESA Partner States, where the protection of intellectual property rights may exist simultaneously in several States and determines that intellectual property that is protected in more than one Eu- ropean Partner State shall not give "the right to recover in more than one such State for the same act of infringment of the same rights in such intellectual property which occurs in or on an ESA registered element." As a corollary, the owner of an intellectual property right may only bring an action for infringment in one particular State. Pursuant to Article XXI paragraph 6, the mere temporary presence in the territory of a Partner State does not create the right for any proceedings for patent infringement. The application of Article XXI of the IGA leaves open ques- tions regarding such things as the protection of international patent rights during utilization, especially during joint activities aboard the ISS, and the issue of technology transfer. The need to harmonize international patent laws is imperative.117 Clarity and certainty in the application of intellectual property law to secure proprietary rights in space activities are essential in order to give private industry the confidence necessary to develop ac- tivities and to ensure the commercialization of Outer Space.'
OUTLOOK AND CLOSING REMARKS Tremendous progress has been made on this international partnership. In late 1999, an international crew of three astro/ cosmonauts will begin living aboard the ISS, starting a perma- nent human presence aboard the outpost. The crew has been in training for the mission since late 1996 and includes Flight Engineer Sergei Krikalev, a Russian cosmonaut, Soyuz Com- mander Yuri Gidzenko, also a Russian cosmonaut, and ISS Com- mander Bill Shepherd, a U.S. astronaut. But the ISS Program continues to face significant challenges. Budgetary constraints, especially in times of economic instability of the global markets as well as cultural and national differences
117 See Meyer, supra note 113, at 345; see also Balsano, supra note 112, at 182. 118 See Balsano, supra note 112, at 182-83 and note 14 with further literature regarding the subject matter. 1999] INTERNATIONAL SPACE STATION 1055 demand all efforts of the participating Partners to build and op- erate the ISS on schedule, and to maintain a global interest and commitment to the Program. The extent to which the Program depends on Russia is quite substantial and represents a signifi- cant Program risk. Russia's ability to meet its commitments in lieu of its economy and politics is a major issue today and also depends on the Partners involved. The construction of the Rus- sian Service Module"' as the third major element of the ISS, which will provide propulsion and attitude control to the initial station vehicle, significantly threatens the Station plan. 120 The latest Russian financial and political crisis further slowed the Russian activities and has led to a NASA rescue package, which would pay Russia US $660 million over the next four years in order to help the bankrupt Russian Space Agency complete cru- 1 cial hardware for the ISS.12 After a series of meetings that concluded in the beginning of October 1998 with a meeting of representatives from all interna- tional partners in Moscow, it was confirmed that the launches of the first ISS components, the Zarya module ("Daybreak") and the Unity module, remain on schedule. Accordingly, the "Zarya" module was launched on November 20, 1998, from the Baikonur Cosmodrome, Kazakhstan, and the "Unity" module was launched on the U.S. Space Shuttle Endeav- our on December 4, 1998 from the Kennedy Space Center, Flor- ida, to begin the orbital construction of the ISS. The international Partner Representatives and members of the SSCB reviewed plans for launch of the Russian-provided Zvezda ("Star")Service Module, the Station's early living quarters and cornerstone of Russia's contributions to the ISS. The Service Module shall also provide control of the station until the arrival of the U.S. Destiny laboratory in the year 2000. Its official launch date is now scheduled for November 12, 1999, from the 122 Baikonur Cosmodrome in Kazakhstan Once the third component is added in 1999, the Station will become functional. The chances, however, that the Partners
119 But also the Logistics Transfer Vehicle and the Science Power Platform. 120 See Craig Covault, Russian Service Module Threatens Station Plan,AVIATION WK. & SPACE TECH., Sept. 23, 1996, at 20-21; see also Smith, supra note 1, at 2. 121 See Joseph C. Anselmo, NASA Plans $ 660-Million Station Bailout for Russia, AVIATION WK. & SPACE TECH., Sept. 21, 1998, at 26-27. 122 See Debra J. Rahn., NASA News (last modified Sept. 17, 1999)